What Net Neutrality Really Means and How to Protect Your Business

There are claims on all sides regarding the Federal Communications Commission's decision to reclassify ISPs and they all share one thing: they're pushing their own agenda.

By Wayne Rash

28 Feb 2018, 4:23 p.m.

By now you've heard the cries of anguish from all sides as the Federal Communications Commission (FCC) moves to reclassify internet service providers (ISPs) so that they fall under Title I of the Telecommunications Act. Previously, they'd been classified under Title II. One side of the discussion is claiming that the FCC repealed net neutrality while the other side is claiming that the FCC restored net neutrality. Here's what's actually going on.

Back in 2015, the FCC, acting under instructions from the White House, voted on party lines to reclassify broadband internet and the ISPs that provide it from Title I of the Telecommunications Act to Title II. Title II is the part of the Telecommunications Act that regulates phone companies, and most of its provisions are either irrelevant to the internet or would place burdens that ISPs can't meet. The FCC got around this problem by agreeing not to enforce those parts. Title I is for information services.

Under Title II, the FCC had the ability to regulate how broadband providers managed their traffic. This meant that they could prevent ISPs from placing data caps on internet users, throttling users, or charging extra for services they didn't want people to use (such as competing cloud providers), and they couldn't simply block access to sites they didn't like. It also gave the FCC the authority to enforce such actions.

Under Title I, the Federal Trade Commission (FTC) does the enforcing for what it considers unfair or deceptive practices, including data caps, throttling, or other anti-competitive behavior such as blocking or charging extra for services the ISP doesn't want you to use. The FCC still retains some control under Title I.

At the time this happened, the FCC was working with Congress to craft legislation that would provide net neutrality protections to the internet. That effort was abandoned.

In late 2017, two years after the previous action, the FCC voted, again on party lines, to rescind the reclassification to Title II, putting broadband communications back to Title I. The biggest difference between the way things were before 2015 and Title I now was that the FCC imposed a transparency requirement wherein ISPs had to disclose what they were doing. So, for example, if they were going to throttle traffic, then they had to say so before a customer signed up.

What This Means to Your Business

The near-term effect of the reclassification on your business is going to be minimal. ISPs have said that they have no plans to start throttling traffic, and if they do, then the FTC can take action. In terms of the so-called internet "fast lanes," nothing really changes there, either. It's worth noting that providing "fast lanes" for companies willing to pay for them isn't the same thing as creating "slow lanes." Those faster networks are private networks that exist outside of the public internet.

Despite the contention that having fast lanes also means having slow lanes, that isn't really true. What happens is that information providers that want their data to travel with less of an impediment already have those fast lanes; they had them before the first reclassification and they had them during Title II. Those fast lanes are called "Content Distribution Networks" (CDNs) and they're widely used.

CDNs have the advantage that they get traffic with high-bandwidth demands out of the general internet traffic, and as a result, reduce congestion. So, in effect, they eliminate the slow lanes rather than creating them. This means your internet will work better.

The largest and best-known CDN is Akamai but there are plenty of others, including CDN.net, which is an on-demand, global distribution network. CDNs work by geographically distributing access to your data by using their own private networks to take traffic off of the internet, and also by moving your data nearer to your users by putting it on servers that are physically located much nearer to the folks actually making the demand. To some extent, they resemble edge computing networks except that, instead of performing compute functions, they provide faster access to data.

But what about charges that ISPs may throttle certain traffic? Well, in general, they've promised not to but, hey, they might be lying. This has happened and the FTC ended up suing AT&T for throttling as an unfair or deceptive practice. AT&T challenged the FTC's right to do that and lost. The US Court of Appeals for the Ninth Circuit upheld the FTC's actions.

So why all of the demonstrations, angst, and overall hype about the issue? There are several reasons, some of which are self-serving on the part of advocacy groups. Other reasons stem from not knowing what's in the FCC's order because it's long and hard to read. And, of course, there's politics because there are folks who can't stand anything related to the current administration in the White House, including the FCC—despite the fact that most of the commissioners were, in fact, appointed by the previous administration.

Unfortunately, there's nothing to prevent a future FCC from reclassifying the current reclassification, so this whole thing could happen again. Broadband is only considered to be an information service under Title I as long as this FCC is in power. A new administration and a new FCC could change things right back, which would give you and every other internet user regulatory whiplash.

If all of this sounds insane, that's because it is. The hyper-partisan politics in Washington is one of the greater risks affecting your business over the long term because you have no assurance that the regulations that affect you will remain stable. If a new party takes the White House in the 2020 elections, then you can expect that many of the rules you have to live by now will change again.

This long-term uncertainty can only be resolved by legislation, which is what the FCC and Congress were trying to accomplish in 2015. Unfortunately, that legislation was a carefully crafted bipartisan effort that really would have ensured net neutrality. But the fact that it was bipartisan means that, even if it were resurrected, it would have no chance of passage in the current political climate.

Protecting Your Business

Fortunately, from an IT perspective, there are several steps you can take to protect your business should the worst come to pass—which, again, is by no means guaranteed. For one, you have the ability to affect your own communications environment more than consumers might. You can usually choose an ISP that will provide you the communications environment you like and which won't mess with your traffic. You can probably be your own ISP if you're willing to go to the trouble and expense.

But you also need to worry about your customers reaching you, so you need to make sure you can take advantage of CDNs if you have a lot of traffic, especially traffic that is sensitive to delays or congestion. Signing up for a CDN is as easy as visiting their site on the internet at the addresses I mentioned earlier (Akamai and CDN.net), where you can see pricing, how they operate, and determine if your business can benefit. To be effective, you need to be a site that either has a lot of users and thus creates a lot of traffic or you need to have a need for reliable traffic delivery, such as a streaming service.

And if, against all sense, an ISP does decide to throttle your traffic, then you can monitor that by testing network throughput from a location on their network. However, you're most likely to find out through user complaints. The most likely reason for such throttling is if your company provides a service that the ISP sees as competition. If you see that happening, then your first call should be to the FTC, since that agency considers such throttling to be illegal.

Again, though, that's a worst-case scenario. The vast majority of legitimate businesses won't be blocked and are unlikely to be throttled, especially now that the FTC has the legal clout to stop it. The more likely issue is going to be network congestion, which you can fix with a CDN. Congestion isn't the same thing as blocking and, although it could be a sign of a poorly managed network, it's not illegal.

Oh, and you can make it a point to support politicians who will work for net neutrality legislation. Otherwise, uncertainty will rule, and that doesn't help you or anyone else.